Citation NR: 9704863
Decision Date: 02/12/97 Archive Date: 02/19/97
DOCKET NO. 94-28 708 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to a total evaluation due to individual
unemployability based on service connected disabilities.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Chaplin, Counsel
INTRODUCTION
The veteran had active service from July 1940 until August
1971.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision of February 1994,
from the St. Petersburg, Florida, regional office (RO) of the
Department of Veterans Affairs (VA) which denied entitlement
to a total rating based on individual unemployability due to
service-connected disabilities.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected disabilities
and their required treatment preclude any gainful employment.
He claims that treatment and exercises to be performed
throughout the day would make it difficult to work at
substantially gainful employment. Also, he has been
prescribed a collar for his neck. The veteran noted that he
had not been employed since 1971 when he retired from the
military service. He was not able to secure employment at
that time through the Florida Employment Service. He claims
that he is precluded from being able to obtain, or retain all
forms of substantial gainful employment due to his
disabilities which have become more severe over the years
coupled with his advanced age limitations. He claims that
the arthritis has grown worse; medication does not relieve
the pain, and it has now involved spinal nerves to cause
peripheral neuropathy.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that with resolution of the doubt
in the veteran’s favor, the evidence supports entitlement to
a total rating based on individual unemployability due to
service-connected disabilities.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained by the agency of
original jurisdiction.
2. The appellant has completed four years of college. He
retired from the military service in August 1971 with 31
years of active service. He indicated that he attempted to
obtain employment in sedentary administration in September
1971 through the Florida State Employment Service.
4. He is service-connected for osteoarthritis of the lumbar
spine with limitation of motion, evaluated as 40 percent
disabling; osteoarthritis of the cervical spine with
limitation of motion, evaluated as 20 percent disabling;
osteoarthritis of the left knee with limitation of motion,
evaluated as 10 percent disabling; osteoarthritis of the
right knee with limitation of motion, evaluated as 10 percent
disabling; sinusitis with vasomotor rhinitis, evaluated as 10
percent disabling; hiatal hernia, evaluated as 10 percent
disabling; and osteoarthritis of the right hand and
osteoarthritis of the left hand, each evaluated as
noncompensable. The combined evaluation is 70 percent
disabling.
5. The appellant meets the schedular requirement for a total
rating due to unemployability.
6. The appellant is precluded by service-connected
disabilities from obtaining and sustaining substantially
gainful employment.
CONCLUSION OF LAW
A total rating for compensation purposes as the result of
unemployability caused by service-connected disabilities is
warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
Part 4, § 4.16(a) (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A completed application for increased compensation based on
individual unemployability was received from the veteran in
December 1993. The veteran claims that he now has a combined
rating of 70 percent with one disability rated at 40 percent;
and he is rendered unemployable as a result of service-
connected disabilities. We find the claim to be well-
grounded as the veteran meets the regulatory requirements and
indicates that the severity of his disabilities prevent him
from obtaining and keeping a job. Cf. Proscelle v.
Derwinski, 2 Vet.App. 629, 631-32 (1992) (claim for increased
rating for a disability to be well grounded when an appellant
indicates that the severity of the disability has increased).
Total disability exists “when there is present any impairment
of mind or body which is sufficient to render it impossible
for the average person to follow a substantially gainful
occupation.” 38 C.F.R. § 3.340(a)(1) (1995). Where the
schedular disability rating is less than 100 percent, a total
disability rating based on individual unemployability may be
assigned if a veteran is rendered unemployable as a result of
service-connected disabilities, provided that certain
regulatory requirements are met. Total disability ratings
for compensation may be assigned where the schedular rating
is less than total, when it is found that the disabled person
is unable to secure or follow a substantially gainful
occupation as a result of a single service-connected
disability ratable at 60 percent or more, or as a result of
two or more disabilities, provided at least one disability is
ratable at 40 percent or more, and there is sufficient
additional service-connected disability to bring the combined
rating to 70 percent or more. Additionally, multiple
disabilities resulting from a common etiology or a single
accident are considered one disability. 38 C.F.R. § 4.16
(1995).
38 C.F.R. § 4.16(a) further reads, “...the existence or
degree of nonservice-connected disabilities or previous
unemployability status will be disregarded where the
percentages referred to in this paragraph for the service-
connected disabilities are met and in the judgment of the
rating agency such service-connected disabilities render the
veteran unemployable.” Further, 38 C.F.R. § 4.16(b) states,
“It is the established policy of the Department of Veterans
Affairs that all veterans who are unable to secure and follow
a substantially gainful occupation by reason of service-
connected disabilities shall be rated totally disabled.”
Background
Service medical records show that the veteran was before a
Medical Board for several disabilities and was found to meet
the requirements to be boarded out under the Whole Man
Concept. The Medical Board determined that the veteran was
questionably physically unfit to continue on active military
service due to disabilities which were incurred in service.
In the narrative summary, the discussion of present condition
including motivation noted:
[Veteran] is currently mildly symptomatic with
his hiatal hernia and is forced to rely on
regular dosages of antacids and a modified
diet. This condition is responsible for
causing him quite a bit of anxiety as well as
actual discomfort. [Veteran] has chronic
disease, involving the bony structure of his
spinal column and this could, at some later
date, effect his spinal cord and therefore his
ability to function in any capacity whatsoever.
He will require periodic checks for this, and
at the present time requires medication for
symptomatic relief. [Veteran] experiences
constant need to take medication in order to
breath[e], and contributes to his mild anxiety
about his physical condition, as well as
[causes] real discomfort. Personal health has
progressively deteriorated in that the cervical
arthritis, hiatal hernia and rhinitis symptoms
have worsened in the past twelve months. . . .
His moderately severe, lower back pain has
resulted in lower stamina and lower libido
combined with intermittent varicocele and
increased tension. These have developed over a
period of approximately two years and have
resulted in a more anxious and slightly more
depressed individual. As all these conditions
are presented dynamic processes and as these
processes can change, possibly for the worse,
it felt that this [veteran] meets the
requirements to be boarded out under the Whole
Man Concept.
The Physical Evaluation Board found him physically unfit,
recommended a combined rating of 30 percent, and recommended
that he be permanently retired from the service. The
disabilities were hernia, hiatal, with persistent
midepigastric pain burning; osteoarthritis, cervical spine,
with x-ray evidence and limitation of motion, recommended 10
percent disability evaluation; and lumbosacral strain with
characteristic pain on motion, recommended 10 percent
disability evaluation.
By a rating action in February 1972, the veteran was granted
service connection for osteoarthritis of the cervical and
lumbar spine evaluated as 20 percent disabling from September
1, 1971; hiatal hernia, evaluated as 10 percent disabling
effective from September 1, 1971; and for sinusitis with
vasomotor rhinitis, evaluated as 10 percent disabling from
September 1, 1971.
In July 1989, the veteran sought increased evaluations for
his service connected disabilities. By a rating action in
November 1989, the 10 percent evaluations for hiatal hernia
and sinusitis were confirmed and continued. Arthritis of the
cervical and lumbar spine previously evaluated 20 percent
disabling were separately evaluated with a 20 percent
evaluation assigned for arthritis of the lumbar spine and a
10 percent evaluation for arthritis of the cervical spine.
Service connection was granted for arthritis of the left knee
and for arthritis of the right knee, each assigned a
noncompensable evaluation.
Evidence includes a letter dated August 13, 1990, from
Richard L. Brown, M.D. who had been treating the veteran
since May of 1990. Dr. Brown wrote that the veteran had a
history of osteoarthritis for some twenty odd years. He had
chronic low back problems which had been progressive. When
first seen, the veteran complained of problems in the
shoulders, the cervical spine, and the lumbar spine. He
complained of occasional radiation of pain down into the
legs. Examination at that time revealed some osteoarthritis
changes in his hands, pain in his cervical spine with loss of
range of motion and pain in the lumbar spine with loss of
flexion. Physical therapy was started and medication
prescribed. On his return visit in June, he was still
symptomatic primarily in his shoulders, cervical spine and
lumbar spine. Crepitus was noted in his knees. The
medication was increased. In July 1990, he was still
complaining of symptoms. The medication was changed;
however, at a later date, it was returned to that originally
prescribed. Dr. Brown wrote: “Overall I feel that [the
veteran] has a significant problem with osteoarthritis
involving his cervical and lumbar spine.”
Dr. Brown wrote an addendum on August 31, 1990, which stated
that the veteran had diffuse osteoarthritis involving
multiple areas. Dr. Brown indicated that the veteran had
moderate difficulty getting out of a chair because of his
arthritis. The arthritis involving his hands was mild in
nature with no severe loss of function. He had moderate loss
of motion of the cervical spine in all planes. He had
moderate to severe loss of motion in the lumbar spine. The
knees showed moderate crepitus and loss of range of motion
with flexion to only 90 degrees and loss of a few degrees of
extension.
Based on the private physician’s statements and the results
of a VA medical examination in December 1990, in a rating
action in January 1991, the RO assigned a 10 percent
evaluation for arthritis of the left knee with limitation of
motion; a 10 percent evaluation for arthritis of the right
knee with limitation of motion; and a 40 percent evaluation
for osteoarthritis of the lumbar spine with limitation of
motion.
A treatment note dated in February 1991 by Horace D.
Townsend, M.D., indicated that the veteran sought treatment
for his neck and shoulders. The veteran complained that his
cervical spine was increasingly troublesome with increasing
pain and increasing limitation of motion. Additional
complaints were pain with turning his neck and other motions;
unable to do overhead work; the lifting of objects caused
discomfort in his neck and shoulder areas; and his neck
cracked and popped on motion.
The examination of his neck revealed 30 degrees of rotation
to the right and left. Lateral bending to the right and left
was limited to 10 degrees. There was pain at the limits of
all motion particularly rotation, lateral bending and
extension. There was a 50 percent loss of motion in other
planes of motion of the neck. The report further found
tenderness in the posterior cervical musculature and
trapezius. A neurologic examination in the upper extremities
did not reveal specific loss of motor strength. The X-rays
of the cervical spine revealed Atlanto-axial arthritis. Also
revealed was disc degeneration at the 3rd, 4th, 5th, 6th, and
7th cervical levels and foraminal narrowing through these
areas with anterior lipping and epiphyseal joint arthritis.
Dr. Townsend diagnosed degenerative arthritis in the cervical
spine with disc degeneration and Atlanto-axial arthritis in
the epiphyseal joint, degeneration in the foraminal
narrowing. Dr. Townsend further noted that the veteran had
severe degenerative arthritis in the cervical spine with very
significant limitation of motion and pain on motion.
A rating decision in August 1991 confirmed and continued the
assigned evaluations; the veteran disagreed and initiated an
appeal. A Board decision in September 1992 granted an
increased evaluation to 20 percent for osteoarthritis of the
cervical spine with limitation of motion; a rating decision
in October 1992 implemented this decision.
In December 1993, the veteran submitted a completed
application for increased compensation based on individual
unemployability.
A VA medical examination in September 1994 diagnosed cervical
osteoarthritis with possible degenerative joint disease
causing radiculopathy upper extremities; and degenerative
disc disease lumbosacral spine with lower extremities
radiculopathy. An EMG study in October 1994 provided an
impression of no evidence of lumbar radiculopathy; and
evidence of mild sensorimotor peripheral neuropathy.
A September 1994 VA orthopedic examination noted the
veteran’s long standing history of degenerative arthritis.
The subjective complaints were of progressive stiffening and
pain involving primarily the cervical and lumbar spines. The
veteran wore a cervical collar. The objective findings were
of moderate dorsal kyphosis, palpable tenderness along the
cervical spine, paravertebral muscular spasm of the cervical
spine and the lumbar spine. The veteran stated that he had
pain in all movements.
Analysis
The veteran is service-connected for osteoarthritis of the
lumbar spine with limitation of motion, evaluated as 40
percent disabling; osteoarthritis of the cervical spine with
limitation of motion, evaluated as 20 percent disabling;
osteoarthritis of the left knee with limitation of motion,
evaluated as 10 percent disabling; osteoarthritis of the
right knee with limitation of motion, evaluated as 10 percent
disabling; sinusitis with vasomotor rhinitis, evaluated as 10
percent disabling; hiatal hernia, evaluated as 10 percent
disabling; and osteoarthritis of the right hand and
osteoarthritis of the left hand, each evaluated as
noncompensable.
As the veteran has multiple service connected disabilities,
with one disability rated at 40 percent and the combined
value for the veteran’s service-connected disabilities
results in a rating of 70 percent disabling, the veteran
therefore satisfies the regulatory schedular criteria for
consideration of a total disability rating based on
individual unemployability. See 38 C.F.R. § 4.25 (1995).
The Board must determine if there are circumstances, apart
from non-service-connected disabilities and advancing age,
that place this veteran in a different position than other
veterans with a 70 percent disability rating.
For a veteran to prevail on a claim based on
unemployability, it is necessary that the
record reflect some factor which takes the
claimant’s case outside the norm of such
veteran. See 38 C.F.R. § 4.1, 4.15 (1992).
The sole fact that a claimant is unemployed or
has difficulty obtaining employment is not
enough. A high rating in itself is a
recognition that the impairment makes it
difficult to obtain and keep employment. The
question is whether the veteran is capable of
performing the physical and mental acts
required by employment, not whether the veteran
can find employment. See 38 C.F.R. § 4.16(a)
(1992).
Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993).
The Court has also stated that the Board may not reject a
well-grounded claim for total disability based on individual
unemployability “without producing evidence, as distinguished
from mere conjecture, that the veteran can perform work that
would produce sufficient income to be other than marginal.”
Beaty v. Brown, 6 Vet.App. 532, 537 (1994).
In other words, for veterans meeting the criteria of
38 C.F.R. § 4.16(a), if the veteran has nonservice-connected
disabilities that render him unemployable, as well as a
service-connected disability that does, and he has not worked
for a long time, he may still be granted a total rating for
compensation purposes based on unemployability as the result
of the service-connected disability. The task of the Board
is to decide if the service-connected disability is
sufficiently incapacitating as to render him unemployable.
See Pratt v. Derwinski, 3 Vet.App. 269 (1992).
We conclude that a total rating for compensation purposes
based on individual unemployability is appropriate. The
veteran meets the schedular requirement for a total rating
due to unemployability. Initially, we note that some of the
conditions presently claimed are the same conditions
resulting in medical discharge from the service. The
argument could be made that as he was discharged as being
physically unfit by the hernia, and cervical and lumbar
spines disorders, the reason for the discharge was that the
Army had no employment for him. See Fluharty v. Derwinski, 2
Vet.App. 409 (1992). The record contains no evidence that
the veteran has worked since 1971 when he retired from the
Army. The veteran has stated that he attempted to obtain
sedentary employment in 1971, but was unsuccessful. Although
the evidentiary record lacks a social and industrial survery,
the Board does not find that a useful purpose would be served
by requesting said survey.
The evidence shows that in addition to the three disabilities
listed at the time of retirement and for which the veteran is
service-connected, the veteran is also service-connected for
additional disabilities including arthritis of the knees and
hands and sinusitis. The evidence shows that the veteran has
diffuse osteoarthritis involving multiple areas. The
arthritis involving his hands was described as mild with no
loss of function. The arthritis of the cervical spine was
severe with very significant limitation of motion and pain on
motion. The arthritis of the lumbar spine involved moderate
to severe loss of motion. In addition, there was evidence of
mild sensorimotor peripheral neuropathy. Medical findings in
September 1994 noted tenderness along the cervical spine, and
paravertebral muscular spasm of the cervical and lumbar
spines. The veteran complained of pain and the clinical
evidence revealed severe limitation of motion and pain on
motion of the cervical and lumbar spines.
Based on the overall disability picture we find that the
veteran is not capable of performing the physical acts
required by employment and has impairment of his industrial
adaptability. The service-connected arthritis severely
limits the range of motion of the cervical and lumbar spines.
In addition, we find that the chronic pain and muscle spasms
of the cervical and lumbar spines severely effect the
veteran’s ability to sit or stand for prolonged periods of
time. Further, his private physician observed that the
veteran had difficulty getting up from a chair. We conclude
that his service-connected disorders are shown to be of such
severity as to render him unable to secure or follow a
substantially gainful occupation. Accordingly, a total
rating for compensation purposes based on individual
unemployability due to service-connected disabilities is
warranted.
ORDER
A total disability rating for compensation on the basis of
individual unemployability due to service-connected
disabilities is granted subject to regulatory criteria
applicable to payment of monetary awards.
JACK W. BLASINGAME
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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